The People of the State of New York v. Darryl R. Brown

THE PEOPLE OF THE STATE OF NEW YORK,RESPONDENT,v.DARRYL R. BROWN,DEFENDANT-APPELLANT.

Appeal from a judgment of the Supreme Court, Monroe County (Joseph D. Valentino, J.), rendered January 4, 2008.

People v Brown

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ.

The judgment convicted defendant, upon a non-jury verdict, of criminal sexual act in the first degree and endangering the welfare of a child.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:

On appeal from a judgment convicting him, following a non-jury trial, of criminal sexual act in the first degree (Penal Law § 130.50 [3]) and endangering the welfare of a child (§ 260.10 [1]), defendant contends that Supreme Court erred in permitting a six-year-old child to give sworn testimony. Contrary to the People's contention, the contention of defendant is preserved for our review. We nevertheless conclude that it is without merit.

The presumption that a child less than nine years old is incapable of giving sworn testimony "is overcome . . . if the court is satisfied that the child understands the nature of the oath' " (People v Morales, 80 NY2d 450, 453). The court's determination of competency is "necessarily individualistic in nature" (People v Nisoff, 36 NY2d 560, 566), and it is subject to limited appellate review, inasmuch as the trial court has the unique "opportunity to view the witness[ and] to observe manner, demeanor and presence of mind" (People v Parks, 41 NY2d 36, 46). Thus, we will not disturb the court's determination "absent a clear abuse of discretion" (People v Rising, 289 AD2d 1069, 1070, lv denied 97 NY2d 732; see also People v Thompson, 59 AD3d 1115, 1117, lv denied 12 NY3d 852, 860).

Furthermore, even assuming, arguendo, that defendant's challenge to the sufficiency of the evidence is preserved for our review, we conclude that it lacks merit (see generally People v Bleakley, 69 NY2d 490, 495). Viewing the evidence in light of the elements of the crimes in this non-jury trial (see People v Danielson, 9 NY3d 342, 349), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). With respect to his statements to the police, defendant contends that the court erred in refusing to suppress those statements because the police investigator to whom he made the statements had an initial conversation with him to build a rapport before advising him of his Miranda rights. Defendant failed to preserve that contention for our review (see People v ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.